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EXECUTIVE DECISION 


GOVERNOR OF OREGON, nja- 

I (^rcvtT) 


IN THK MATTER OF 


ELIGIBILITY OF ELECTOR 


OF 

PRESIDENT AND VICE PRESIDENT . 

OF THE 

UNITED STATES, 



FOR 1876. 




SALEM, OREGON: 

MART. V. BROWN, STATE PRINTER. 
1876 . 

fr 






EXECUTIVE DECISION 

JiY THK 

GOVERNOR OF OREGON. 


Ill the matter of the protest of citizens of Oregon against 
the issue of a certificate of election to John W. Watts, 
postmaster at Lafaj^ette, as an Elector of President and 
Vice President of the United States, as being ineligible 
to said office, and demand that the certificate be given 
to the three qualified candidates having the highest 
number of votes. 

This matter arises on a protest of eminent citizens of 
Oregon, as follows: 

To His Excellency^ L, F. Grover^ 

Governor of Oregon: 

The undersigned, citizens of, and legal voters in, the 
State of Oregon, do hereby protest against the issuance of 
a certiticate of election to John W. Watts, a candidate for 
Presidential elector at the late election, held on the 7th 
day of i^ovember, 1876, for the reason that on that day, 
and until about the 13th or 14th of the same month, he 
was a postmaster, duly appointed and qualified as such by 
the proper authorities of the United States, and therefore 
ineligible as an elector, under section 1 of article ii. of the 
Constitution of the United States. We claim and insist 



4 


EXECUTIVE DECISION. 


that the votes cast for the said J. W. Watts at that elec¬ 
tion amounted to nothing, the same as if they had never 
been cast; and he being ineligible to said office of 
elector, it is the duty of the proper canvassing officers to 
give the certificate of election to the three qualified candi¬ 
dates having the highest number of votes. 

JAMES K. KELLY, 

K. li. TIIOMPSOY, 

J. C. AINSWORTH, 
GEO. L. CURRY, 

C. B. BELLINGER, 

W. H. EFFINGER, 

W. W. THAYER, 

W. F. TRIMBLE, 

J. N. T. MILLER, 

B. JENNINGS, 

J. S. WHITE, 

B. B. ACKER, 

JOHN F. MILLER, 

WM. STRONG, 

J. MILLER, 

A. I). SHELBY, 

J. H. REED, 

T. PATTERSON. 

This protest is accompanied by affidavits of citizens of 
Lafayette, sliowing that Watts was acting postmaster, as 
alleged, and had been for three years prior thereto. 

In response to this protest, a counter protest was filed 
by J. W. Watts and his associates on the same ticket, ob¬ 
jecting to any action of the Governor, in issuing certifi¬ 
cates, except to certify those having the highest number 
of votes as duly elected, and demanding a certificate for 
them, including the said J. W. Watts. In this response 



EXECUTIVE DECISION. 


5 


there is no denial of the tenure of the office of postmaster, 
as alleged in the protest. 

By the Act of Congress of March 26, 1804, it is pro¬ 
vided as follows: “That the executive authority of each 
State shall cause three lists of the names of the electors of 
such State to be made and certified and to be delivered to 
the electors on or before the said first Wednesday in De¬ 
cember, and said electors shall annex one of said lists to 
each of the lists of their votes.” 

The general laws of Oregon, page 578, section 60, pro¬ 
vide that “the votes of electors shall be given, received, 
returned and canvassed as the same are given, returned 
and canvassed for members of Congress. The Secretary 
of State shall prepare two lists of the names of electors 
elected, and affix the seal of the State to the same. Such 
lists shall be signed by the Governor and Secretary, and 
by the latter delivered to the college of electors, at the 
hour of their meeting, on such first Wednesday of Decem¬ 
ber.” 

The manner in which the returns are canvassed for mem¬ 
ber of Congress is laid down in general laws of Oregon, 
page 574, as follows: “It shall be the duty of the Secre¬ 
tary of State, in the presence of the Governor, to proceed, 
within thirty days auer the election, and sooner if the re¬ 
turns be all received, to canvass the votes given, etc., and 
the Governor shall grant a certificate of election to the 
person having the highest number of votes, and shall also 
issue a proclamation declaring the election of such person.” 
The Act of June 2, 1859, requires that the Governor “shall 
grant certificates to members duly elected to the Senate of 
the United States, and also to members of Congress, which 
shall be signed by him and countersigned by the Secre¬ 
tary of State, under the seal of the State.” 

General Laws, p. 489. 






6 


EXECUTIV^E DECISION. 


The Constitution of this State, article 2, section 16, 
provides that, “In all elections held by the people under 
this Constitution, the person or persons who shall receive 
the highest number of votes, shall be declared duly elect¬ 
ed.” 

I construe all these provisions in relation to the person 
receiving the highest number of votes, as meaning the 
highest number of legal votes, and the highest number of 
legal votes cast for a person constitutionally eligible to 
office. 

If it is objected that the terms of our State Constitu¬ 
tion, just quoted, are very strict, it is answered that the 
appointment of electors of President and Vice President 
of the United States is not made “under this Constitu¬ 
tion,” but under the direction of the Constitution of the 
United State.s. 


QUESTION OE JUKISDICTION. 

Objection being raised by the protest, that one of the 
candidates voted for, and who received a sufficient number 
of votes for election, if eligible, is disqualified under the 
Constitution of the United States to be appointed an elec¬ 
tor; and on the other hand, it being demanded that the 
Governor grant a certificate of election to Watts, the can¬ 
didate alleged to be disqualified, notwithstanding the dis¬ 
qualifying fact is admitted, a question of jurisdiction is 
raised as to whether the Governor has any authority to 
determine this issue. 

The protest here interposes a constitutional objection to 
the issuance of a certificate to Watts, and calls for the ex¬ 
ercise, by the Executive, of what is claimed to be a con¬ 
stitutional duty. 

Upon this subject, the rule laid down by Judge Cooley 


EXECUTIVE DECISION. 


i 

in bis work on Constitutional Limitations, pp. 39-41, is as 
follows: 

“ Whenever any one is called upon to perform any con¬ 
stitutional duty, or to do any act in respect to which it 
can be supposed that the Constitution has spoken, it is 
obvious that a question of construction may at once arise, 
upon which some one must decide before the duty is per¬ 
formed or the act done. From the very nature of the 
case, this decision must commonly be made by the per¬ 
son, body or department upon whom the dutj^ is devolved, 
or from whom the act is required. * >?c * 

follows, therefore, that eveiy department of the Gov¬ 
ernment, and every official of every department, may at 
at any time, when a duty is to be performed, be required 
to pass upon a question of constitutional construction.” 

The Governor of this State, in taking his oath of office, 
prescribed by the Constitution, is sworn to support the 
Constitution of the United States and of this State. 

Article xv., section 3. 

Article vi. of the Constitution of the United States de¬ 
clares that “all executive and judicial officers, both of the 
United States and of the several States, shall be bound by 
oath to support this Constitution,” so that the Governor of 
this State, by the terms of the Federal Constitution itself, 
is constituted one of its immediate conservators. 

He cannot, in violation of either the Constitution of the 
United States or this State, grant a commission or a cer¬ 
tificate of election to a person known to be constitution¬ 
ally disqualified to be appointed or elected. 

The Supreme Court of Indiana has very clearly indi¬ 
cated the course to be observed by the Governor under 
these circumstances: “The Governor may determine, 




8 


EXECUTIVE DECISION. 


even against the decision of a board of canvassers, wheth¬ 
er an applicant is entitled to receive a commission or not, 
when the objection to his right to receive it rests upon the 
ground that a constitutional prohibition is interposed. It 
the Governor should ascertain that he has commissioned a 
person who is ineligible to the office, he may issue another 
commission to the person legally entitled to it.” 

Gulick vs. New, 14 Ind. R., 93. 

The duty of issuing commissions and certificates of elec¬ 
tion are political acts, and the responsibility rests alone on 
the discretion of the executive. 

HigK%ft4iExtraordinary Legal Remedies, p. 98. 

Bartley vs. Governor, 39 Mo., 388. . 

In re Dennett, 32 Maine, 508. 

The latter case distinctly indicates the duties and re¬ 
sponsibilities of the different departments of the State 
government; and the court, on a petition for a writ of 
mandamus to control the official doings of the Governor 
and council, denied the writ on the ground that the court 
had no authority to direct the work to be done in another 
and co-ordinate branch of the State government, charged 
with the performance of the special duty in question. 
The petitioner claiming to haVe been elected to an office, 
demanded that the court order the Governor to issue a 
certificate of election, which had been declined, the court 
held that the giving or refusal of this certificate was an 
official act of the Executive Department, and not review- 
able by the courts, on the ground that the Governor and 
council must adjudicate all questions arising in the exer¬ 
cise of their duty. 

The duty of the Governor, under the laws of this State, 
is not that of a canvasser of the votes, nor that of a mem¬ 
ber of a board of canvassers. It is true he is to be pres- 




EXECUTIVE DECISION. 


9 


ent when the Secretary of State canvasses the votes, but 
he takes no part in the work of canvassing, nor of deter¬ 
mining any question touching the ministerial work of can¬ 
vassing the votes. But “the Governor shall grant certifi¬ 
cates to the members duty elected^’ This is his duty as 
Executive, and calls for the exercise of Executive power. 
“The Governor shall grant certificates.” It is not the 
exercise of a duty simply ministerial, but it is the exer¬ 
cise of a duty coupled with a requirement that he see that 
the constitution be observed and maintained, and that the 
persons applying for such certificates are duly qualified to 
be elected. To say that the Governor could not refuse to 
grant a certificate to one declared by the constitution in¬ 
eligible for the office sought by the applicant, would be 
to say that the Executive has no duty, and no power to de¬ 
fend and enforce constitutional prohibitions, when sought 
to be violated and avoided by the very instrument which 
he is called upon to grant. The proposition to my mind 
is an absurdity. The Executive cannot be called upon to 
violate his own oath of office. He is a conservator of the 
constitution, and must support its provisions to the extent 
of his power. 

I can, therefore, in view of the rule laidVjown in Cooley, 
and of the precedents cited from the courts of other States, 
liave no doubt as to the authority or duty of the Execu¬ 
tive to consider and determine the constitutional question 
of the eligibility of Watts to demand a certificate, and 
the legal question as to whether a certificate can lawfully 
be issued to the person having the next highest number of 
votes for elector in his place, in case he should be deemed 
ineligible under the constitution to be appointed or chosen 
to that office. 


2 





10 


EXECUTIVE DECISION. 


THE QUESTION OF ELIGIBILITY. 

In this case, it appears by the protest and the accom¬ 
panying affidavits, and not denied, that John W. Watts, 
one of the candidates of the Republican electoral ticket, 
voted for on the 7th day of November, 1876, and who re¬ 
ceived a majority of votes, was, on that day, the acting 
postmaster at Lafayette, the county seat of Yamhill coun¬ 
ty, and had been postmaster at that place for some three 
years before, and for several days subsequent to said 7th 
day of November; that said office is an office of trust and 
and profit under the United States, and it is claimed that 
he is ineligible to receive a certificate of election on that 
account. 

Article II., section 1, of the Constitution of the United 
States, provides as follows: 

“Each State shall appoint, in such manner as the Leg¬ 
islature thereof may direct, a number of electors equal to 
the whole number of Senators and Representatives to 
which the State may be entitled in Congress; but no Sen¬ 
ator or Representative or person holding an office of trust 
or profit wider the United States, shall be appointed an 
elector U 

The Legislature of Oregon has directed that the ap¬ 
pointment of electors shall be made by the people, who 
shall choose them by a direct vote. By act of Congress, 
it is provided that “the electors of President and Vice 
President shall be appointed in each State on the Tuesday 
next after the first Monday in November in every fourth 
year succeeding every election of a President and Vice 
President.” 

U. S. Kevised Statutes, section 131. 

This is controlling law, and fixes the day of appointing 




EXECUTIVE DECISION. 


11 


electors this year on the 7th day of JSTovember. On that 
day, the appointing power for electors was exercised in 
Oregon the people, and was fully expended. The can¬ 
didate for such office must stand or fall according to his 
cjualification to receive votes on that day. 

“ The mode of canvassing the vote and the proclama¬ 
tion of the Governor, are substantially, only modes of as¬ 
certaining and publishing the result of the vote.” 

McWhirter vs. Brainarcl, 5 Oregon R., 426. 

This element of the matter is well illustrated by the 
case ot Searcy vs. Grow, 15 California R., 120, Grow was 
a postmaster at the town of Yreka at the time he was 
voted for as Sheriff of Siskiyou county. He received the 
highest number of votes, and shortly afterwards, resigned 
his office as postmaster. His office as Sheriff' was contested 
on the ground that on the day of his election he was 
holding a lucrative Federal office, while the Constitution 
of California declared that “no person holding ain^ lucra¬ 
tive office under the United States, or any other power, 
shall be eligible to any civil office of profit under this 
State.” 

Baldwin, Justice, delivering the opinion of the court, 
said: “The counsel for the appellant contends that the 
true meaning of the constitution is that the person holding 
the Federal office described in the twenty-first section is 
forbidden to take a civil State office while so holding the 
other; but that he is capable of receiving votes cast for 
him, so as to give him a right to take the State office upon 
or after resigning the Federal office. But we think the 
plain meaning of the words quoted is the opposite of this 
construction. The language is not that the Federal officer 
shall not hold a State office while he is such Federal offi¬ 
cer, but that he shall not, while in such Federal office, be 





12 


EXECUTIVE DECISION. 


eligible to the State office. We understand the word eligi¬ 
ble ro mean capable of being chosen—the subject of se¬ 
lection and choice. The people in this case were clothed 
with this power of choice; their selection of the candidate 
gave him all the claim to the office which he has; his 
title to the office comes from their designation of him as 
Sheriff. But they could not designate or choose a man 
not eligible, i. e., not capable of being selected. They 
might select any man they chose, subject only to this ex¬ 
ception, that tlie man they selected was capable of taking 
what they had the power to give. 

“We do not see how the fact that he became capable of 
taking the office after they had exhausted their power can 
avail the appellant. If he was not eligible at the time the 
votes were cast for him the election failed. We do not 
see how it can be argued that, by the act of the candidate, 
the votes which, when cast, were ineffectual, because not 
given for a qualified candidate, became effectual to elect 
him to office.” In this opinion. Field, Chief Justice, now 
of the U. S. Supreme Court, concurred. The same prin¬ 
ciple is recognized and enforced in Laimbeer vs. Swine- 
burn, 48 Illinois R., 490, Breese, Chief Justice, deliver¬ 
ing the opinion of the Court. 

Votes cast for a person ineligible, or a person incapable 
of being chosen, are nullities. 

Patterson vs. Miller, 2d Met., Ky. K., 493. 

Morgan vs. Vance, 4th Bush, Ky. K., 323. 

Pearce vs. Hawkins, 2d Swan (Tenn.), 87. 

Spear vs. Kobinson, 29 Maine, 531. 

Crawford vs. Dunbar, decided by California Supreme Court, October 
term, 1876. 

Commonwealth vs. Bead, 2 Ashmead, Penn., 361. 

Gulick vs. New, 14 Indiana, 93. 

Carson vs. McPhetridge, 15 Indiana, 327. 

Price vs. Baker, Governor, 41 Indiana, 572, 



EXECUTIVE DECISION. 


13 


Stewart vs. Hoges, in Circuit Court, Stephenson county, Ills, 3 Chi¬ 
cago Legal News, 117. 

State vs. Giles, 1 Chand. (Wis.), 11‘2. 

State vs. Smith, 14 Wisconsin, 497. 

Stafe vs. Boal, 46 Mo., 528. 

The constitutional inhiViitlon of Federal officers to be 
chosen as electors is, if possible, more positive and point¬ 
ed than any of the prohibitory clauses ot the several State 
constitutions under which the foregoing adjudications have 
been made. The constitution of the United States de¬ 
clares that “no person holding an office of trust or profit 
under the United States shall be appointed an elector.” 

The approach, even, to the office of elector is barred by 
the Constitution against all Federal officers; and votes cast 
for such are as if they had not been cast, or had been cast 
for a dead man. In fact, the person holding an office of 
trust or profit under the United States is civiliter mortuus — 
civilly dead—as far as his eligibility to be chosen an elector 
is concerned. In the forcible words of ex-Chief Justice 
Wait, of this State, in a commuincation to the Executive 
upon this subject, “By the Constitution and laws a person 
not the holder of an office of trust or profit under the 
United States may be elected a Presidential elector, but 
any person holding such an office cannot be elected a 
Presidential elector. The Constitution renders the election 
of such a person impossible, and no number of votes, no 
oath of office, and no certificate of election can make pos¬ 
sible that which the Constitution makes impossible^ In 
fact, the votes cast for a person not eligible to be elected 
are no better than votes cast by persons not legal voters. 
Such votes have no vitality, and are as no votes. “ Two 
requisites are necessary,” says Kyd on Corporations, “to 
make a good election: 1, a capacity in the electors; 2, a 





14 


EXECUTIVE DECISION, 


capacity in the elected; and, unless both concur, the elec¬ 
tion is a nullity,” 

The election of Watts being a nullity, no certificate of 
election can lawfully issue to him. It is the same in’ prin¬ 
ciple, as though by mistake, or otherwise, the highest 
number of votes should have been given to an alien, a 
woman, a person insane, a non-resident, the “man in the 
moon,” or a dead man, which are mentioned as illustra¬ 
tions in the decisions on this subject. 

THE QUESTION OF VACANCY. 

Watts being ineligible to be elected, is there a vacancy 
in the electoral college to be filled by the other electors? 
What constitutes a vacancy in office in this State? 

In title vi., see. 48, general laws of Oregon, p. 576, 
“Of Vacancies,” we have the following provisions: 

“Sec. 48. Every office shall become vacant on the 
occurring of either of the following events, before the ex¬ 
piration of the term of such office: 

1. The death of the incumbent; 

2. His (the incumbent’s) resignation; 

3. His (the incumbent’s) removal; 

4. His (the''incumbent’s) ceasing to be an inhabitant 
of the district, county, town, or village, for which he shall 
have been elected or appointed, or within which the du¬ 
ties of his office are required to be discharged; 

5. His (the incumbent’s) conviction of an infamous 
crime, or of any offense involving a violation of his oath; 

6. His (the incumbent’s) refusal or neglect to take his 
oath of office, or to give or renew his official bond, or to 
deposit such oath or bond within the time prescribed by 
law; 



EXECUTIVE DECISION. 


15 


7. The decision of a competent tribunal, declaring void 
his (the incumbent’s) election or appointment.” 

The word ‘‘incumbent’s,” placed in parentheses in this 
quotation from the Code of Oregon, is placed there by 
me to indicate clearly the construction which I give the 
law. 

There can be no vacancy in office in this State unless 
there has been an incumbent and that incumbent has 
gone out of the office. An incumbent, says Webster, is 
“the person who is in the present possession of a benefice 
or any office.” Bouvier says “it signifies one who is in 
possession of an office.” 

Sawyer, Chief Justice, in the case of People vs. Tilton, 
37 Cal., 617, defines a vacancy as follows: “A vacancy in 
the statutory sense is when the party enters upon the du¬ 
ties of the office, and afterwards dies, resigns, or in any 
manner ceases to be an incumbent of the office before the 
expiration of the term.” 

In Broom vs. Hanley, 9 Penn., 513, it is decided that 
even death, after a lawful election and before qualification, 
does not create an incumbent of the office; nor does it 
create a vacancy which can be filled In’ appointment, 
where the law authorizes vacancies to b^^lled. In this 
case Watts was never an incumbent of the office of elec¬ 
tor. His approach to it was absolutely barred by the Con¬ 
stitution. 

The rule as here defined, is the law of the Federal gov¬ 
ernment. (Story on the Constitution, section 1559). It 
is the law of the Senate of the United States. No Execu¬ 
tive appointment can be made to fill a vacancy in the 
Senate unless there has been an incumbent of the term, 
and the incumbent has ceased to hold during the recess 
of the Legislature. (Lanrnan’a case, Clark and Hall, 871.) 






It) 


EXECUTIVE DECISION 


The principle is also illustrated by the following cases 
taken fi'oni the decisions (d* courts in several States: 

Coiriinonwcalth vs. Hanley, 9 Penn. St. K., olH. 

People vs. Tilton, 37 Cal., 614. 

People vs. Parker, 37 Cal., 639. 

Stratton vs. Oulton, 28 Cal., 51. 

People vs. Stratton, 28 Cal., 382. 

Battle vs. Mclver, 68 N. C. K., 469. 

Dodd ex Parte, 6 Eng. (Ark.), 152. 

State vs. Jenkins, 43 INIo., 261. 

Phelps’ eases eontested elections in Congress 1834 to 1865, 513 to 618. 

State vs. Benedict, 15 Minn., 199. 

Sargeants Civil Law, 373. 

Schenk vs. Peay, 1 Dillon, Ct. Ct., 267. 

On the subject of filling vacancies in the College of 
Electors in this State, the statute, Code, p. d78, sec. 59, 
provides that “if there sliall be any vacancy in the office 
of an elector, occasioned by death, refusal to act, neglect 
to attend or otlierwise, the electors present shall immedi¬ 
ately proceed to fill, by r/lca voce and plurality of votes, 
sucli vacancy in the Electoral College.” 

As far as Watts is concerned, there has been no death, 
no refusal to act, no neglect to attend. There has been no 
“vacancy” otherwise; for the vital reason that he has 
never been an ‘(.incumbent ” of the office. It is then clear 
that there has occurred no vacancy on his account, to be 
filled by the other electors, under the authority of the 
Statutes of Oregon. 

CAN THE NEXT HIGHESt' TAKE? 

When an election lias been held and the hio^hest num- 
her of formal votes having been cast for a person disquali¬ 
fied to receive votes, one of two results follows : either the 
election is void as to both candidates, or the eligible can¬ 
didate having the highest number of legal votes is elected. 






EXECUTIVE D’^^CTSION. 


IT 


There are many leading decisions of the courts and of par¬ 
liamentary bodies upon this subject, and many text books 
which discuss and define the law upon it. There is but 
little conflict of principle at issue, though some few decis¬ 
ions of courts are in opposition to each other. The main 
conflict of authority is reconciled by reference to the facts 
in the several cases. 

The general principle appears to be that 

1. It the highest candidate is ineligible to be elected 
and the voters are fairly chaigeable witli knowledge of the 
disqualifying law, and the disqualifying fact, the election is 
not void, but the eligible candidate having the highest 
number of votes is elected. 

2. If the voters are not tairly chargeable with knowl¬ 
edge of the disqualifying law, and the disqualifying fact, or 
either the one or the other, the election is a failure and no 
one is elected. 

3. There is a difl^erence between eligibility to be elected 
to an office and eligibility/o an ofiice. In the former 
case the election of the ineligible person having the high¬ 
est number of votes is absolutely a nullity. In the latter 
it is voidable only, and may become valid. 

With these distinctions in mind, most of the authorities 
on this subject become classified according to the facts in¬ 
volved, and cease to conflict. 

Cushing on Parliamentary Law, the standard American 
work on this subject, states the rule on elections as fol¬ 
lows: “175. If an election is made of a person who is 
ineligible, that is, incapable of being elected, the election 
of such person is absolutely void, even though he is voted 
for at the same time with others who are eligible and who 
are accordingly elected, (see Male on Elections, 336;) and 
this is equally true whether the disability is known to the 
3 






18 


EXECUTIVE DECISION 


electors or not; vvlietber a majority of all the votes, or a 
plurality only, is necessary to the election; and whether 
the votes are given orally or by ballot. 

“17G. The principle above applies equally where the 
Constitution or law points out, among other eligible per¬ 
sons, the particular candidates to be voted for, in which 
case votes given for other persons are void. Thus the 
Constitutions of Maine and Massachusetts provide that, in 
case of a failure to elect Senators at the general election, 
the deficiency shall be supplied on the day of tlie meeting 
of the Legislature, by such Senators as shall be elected 
and the members of the other branch, from among the 
persons voted for and not elected as Senators. All votes 
given on such occasions for any other than the candidate 
designated by law, though otherwise eligible, are thrown 
away. 

“177. In England, where a plurality only is necessary 
to an election, and where the votes are^ given orally, it is 
also held that if electors have notice of the disqualification 
of a candidate, every vote given for him afterward will be 
thrown away and considered as not having been given at 
all.” 

“King vs. Monday, Cowper’s Keports, 537; liex vs. Hawkins, 10 East 
Kep., 211, and cases there cited; 2 Dow’s Kep., 124; Claridge vs. Evelyn, 5 
Barnewall and Aid. Eep., 81; Kex vs. Coe, Pleywood on County Elections, 
538; Douglas’ Rep. 398, n.; Rex vs. Blissell, Heywood, 537; Rex vs. Parry, 
14 East, 549; Rex vs. Bridge, 1 Maule and Selwyn’s Rep., 76. 

“The effect of this rule is that not only will the election 
of a disqualified person be held void, but if such election 
takes place after notice of the disqualification is given to 
the electors, the candidate having the next highest num¬ 
ber of votes will be elected. 

“Fife, 1, Luders, 455; Cockermouth, 18 Commons Jour., 672; Flintshire, 
1 Peckwell, 526; Southwark, 2 Clifford, 130; Canterbury, 2 Clifford, 353; 






EXECUTIVE DECISION. 


19 


- Kircudbright, 1 Luders, 72: Radnorshire, 1 Peckwell, 496; Lpominister, 
Corbet and Daniel, 1; Leominister, Rogers App., ix.; Cork County, Knapp 
and Ambler, 406; Belfast, Falconer and Fitzherbert, 603; Rogers on Elec¬ 
tions, 224. See also Male on Elections, 336; and Abington, 1 Douglas, 419. 

“This doctrine, liowever hard it may seem, is fhniided in 
the familiar principle that every man is bound to know 
the law with reference to any act which he undertakes to 
do; and consequently that when an elector is apprised of 
the fact of disqualificati.)n of a candidate, and, notwith¬ 
standing, gives his vote for liim, the elector takes upon 
himself the risk of losing his vote if his construction of the 
law turns out to be wrong. 

“Rogers on Elections, 226. 

“178. In this country it is equally true that the elec¬ 
tion of a disqualified person is absolutely void, and in 
those State, where a plurality elects, and where the votes 
are given orally, as in England, votes given for a candi¬ 
date after notice of his disqualification are thrown away, 
and the candidate'* having the next highest number of 
votes elected. 

“179. In reference to elections bj^ ballot, in which se¬ 
crecy is the distinguishing feature, and in which, conse¬ 
quently, neither the returning officers nor the electors 
themselves are supposed to know for whom the votes are 
given until the result is (^declared,Mt seems not unreason¬ 
able to consider the votes for ineligible candidates to De 
thrown away in all cases, and the opposing candidate 
elected, where the electors know, or must be presumed to 
know, the disability, and in all cases where there is no 
such actual or presumed knowledge, to hold the whole 
proceeding merely void.” 

To the same effect is Wilson’s Parliamentary Law, pages 
107 to 114. 





•20 


EXECUTIVE DECISION. 


Angell and Ames on Corporations, page 98, No. 3, say: 
‘‘If the assembly be duly convened, and the majority vote 
for an unqualitied person, after notice that he is not quali¬ 
fied, their votes are thrown away, and the person having 
the next majority, and not appearing to be disqualified, is 
duly elected.” 

Grant, a standard English authoritj- on Corporations, 
2 )age 208, says: “As has been stated, a disqualification, 
])atent or notorious, at once causes the votes given for the 
candidate laboring under it to be thrown away; the same 
would probably be held to be the case where the electors 
had the means of knowledge of the candidate’s qualifica¬ 
tion, or the contrary, and might have ascertained the facts 
if they had |)leased.” jN’umerous cases are cited to sus¬ 
tain these j)usitions. 

So in Cushing on the law of Legislative Assemblies, 
pages 66-67: “ Where the same ineligibility of a candi¬ 

date arises from his holding or having held a public office, 
the people within the jurisdiction of such office are held 
in law to know—are chargeable with notice—of such in¬ 
eligibility; the votes given for such candidate are of no 
effect, and his highest eligible competitor is elected.” 

Grant on Corp., p. 107, 

Biddle va. Willard, 10 Ind. R., 62, on p. 68. 

In the case of Gulick vs. i^Iew, 14 Ind., 93, Wallace had 
held a jurlicial office; resigning the same, became a candi¬ 
date for Sheriff of Marion county before the expiration of 
the term for which he was elected. The (constitution of 
the State disqualifies persons elected to judicial offices 
from holding any other class of offices during the 
term for which they were elected. Wallace obtained 
a majority of the votes cast. (3rulick, an eligible can 




EXECUTIVE DECISION. 


21 


didate, had the next highest number of votes. The 
Supreme Court of Indiana hold the following language: 

“Whether Gulick is shown to have been entitled to such 
commission remains to be examined. It being conceded 
that the votes cast for Wallace were powerless and fruitless 
in effecting the main end arrived at; that is, in electing 
hini, we are still asked to decide that they were so far 
effective as to prevent the election of any other person; 
that they were, so far as affirmative results were involved, 
thrown away, but that negatively they were operative. 
We Jire reminded that in our form of government the^ma- 
jority should rule, and that if the course indicated is not 
followed, a majority of the voters may be disfranchised, 
their voice disregarded and their rights trampled under 
foot, and the choice of a minority listened to. True, by 
the Constitution and laws of this State, the voice of a ma¬ 
jority controls our elections, but that voice must be con¬ 
stitutionally and legally expressed. Even a majority 
should not nullify a provision of the Constitution, or be 
permitted at will to disregard the law. In this is the 
strength and beauty of our institutions. **-'!=** 
pose that eight years ago, at the first election under our 
new Constitution, when nearly all the offices in the State 
were to be filled, a majorit}’ of the voters in the State, 
and in tlie severaj districts and counties, had voted for 
persons wholly ineligible to fill the several offices, would 
those offices have thereby remained vacant? Could that 
majority, by pursuing in that course, have continued the 
anarchy that might have resulted from such action? Or 
rather is it not the true theory that those who act in ac¬ 
cordance with the Constitution and the law should control 
even a majority who may fail so to act ? Whether the 
same reasoning should hold good where the ineligibility 







22 


EXECUTIVE DECISION. 


should arise out of some cause other tlian a constitutional 
prohibition, is^ a question we are not now called upon to 
decide.” 

This case decides that the State Constitution is notice of 
the law, and that holding a public office is notice of that fact. 
Justice Perkins, dissenting from the opinion ofthe court on 
one point, gives a clear and distinct classification of the 
cases cited at bar, and sajs: “Where the voters at the 
election do know, or are legally bound to know, so that in 
law they are held to know of the ineligibility of a candi¬ 
date, the election does not result in a failure; but in such 
case the eligible candidate receiving the higliest number 
of votes is legally elected and entitled to the office.” And 
he states that while there are ho authorities adverse to this 
proposition “there is a cloud of them vindicating its cor¬ 
rectness.” 

In Carson vs. McPhetridge, 15 Ind. 327: McPhetridge 
having been elected clerk of the Monroe Circuit Court for 
two successive terms was constitutionallj' disqualified for a 
third term ; but became a candidate against Carson for the 
office, and obtained a majority vote. Carson contested for 
the office in the courts and prevailed. The court say, “as 
the disabilit}^ in this case was one of which the voters were 
bound to take notice, and a general election, fixed by law, 
is not vitiated by a failure of the officer to make the pub¬ 
lication required by the Statute, the successor (Carson) 
fairly elected, is, under the decision in the case of Gulick 
vs. New, entitled to the office.” 

In a late case. Price vs. Baker, Governor, 41 Ind. 577, 
decided in 1873, the Supreme Court ot Indiana, sustaining 
the decision ofthe court below, unanimously announced the 
principle of the law on this subject as follows : 

“ It is a principle of law well settled in this State, that 



EXECUTIVE DECISION. 


23 


where a majority of the ballots at an election are given to 
a candidate who is not eligible to the office, the ballots so 
cast are not to be counted for any purpose. They cannot 
be counted to elect the ineligible candidate or to defeat 
the election of an opposing candidate, by showing that he 
did not receive a majority of the votes cast at such election. 
They are regarded as illegal, and as having no effect upon 
the election for any purpose. Asa consequence, it follows 
that the candidate who is eligible having the highest num¬ 
ber of legal votes, though that number may be less than 
the number of votes cast for the ineligible candidate, and 
less than a majority ol all the votes cast at such election, is 
entitled to the office.” 

Commonwealth vs. Read, 2 Ashmead, Penn., 261, sup¬ 
ports this doctrine; also. 

The Court of Appeals of Maryland, in the case of 
Hutchinson vs. Tilden and Boardley, 4 Harris and Mc¬ 
Henry 280, in a case of contest concerning the office of Sher¬ 
iff* of Kent county, when the State Constitution required 
a property qualification, said: “All votes given for a can¬ 
didate not having such qualification are to be thrown away 
and rejected as having no force or operation in law.” The 
defendants were judges of the election and had certified 
the eligible person having the iiighest number of legal 
votes to be duly elected, and suit was brought against 
them for damages. Their action was sustained as being 
correct. The Court of Appeals of Isew York, while re¬ 
versing the judgment of the Supreme Court of the 4th 
Judicial Department, in the case of Furman vs. Clute, 50, 
N. Y. Rep., p. 461, which had sustained a minority elec¬ 
tion, on grounds special to that case, nevertheless admitted 
the general doctrine as follows : 

“It is the theory and general practice of our govern- 






24 


EXECUTIVE PECISIOX. 


ment, that the candidate who has but a minority of the 
legal votes cast does not become a duly elected officer. 
But it is also the theory aud practice of our government, 
that a minority of the whole bod^’ of qualitied electors may 
elect to an office, when a majority of that body refuse or 
decline to vote for any one for that office. Those of them 
who are absent from the polls, in theoiy and practical result, 
are assumed to assent to the action of those who go to the 
polls; and those who go to the polls, and who do not vote 
for any candidate for an office, are bound by the result of 
the action of those who do ; and those who go to the polls 
and who vote for a person for an office, if for any valid 
reason their votes are as if no votes, they also are bound 
by the result of the action of those whose votes are valid 
and of effect. As if, in voting for an office to which one 
can only be elected, two are voted for, and their names ap¬ 
pear together on the ballot, the ballot so far is lost. The 
votes are as if for a dead man or for no man. They are 
thrown awa}^ ; and those who cast them are to be held as 
intending to throw them away, and not to vote for any 
person capable of the office. And then he who receives 
the highest number of earnest valid ballots, is the one 
chosen to the office. 

“We may go a step further. They who, knowing that a 
person is ineligible to office by reason of any disqualifica¬ 
tion, persistently give their ballots for him, do throw away 
their votes, and are to be held as meaning not to vote for 
any one for that office. But when shall it be said that an 
elector so knows of a disqualification rendering ineligible 
the person, and knowing, persistently casts for him his 
ballot? There may be notice of the disqualifying fact, 
and of the legal effect of it, given so directly to the voter, 
as that he shall be charged with actual knowledge of the 
disqualification.” 






EXECUTIVE DECISION. 


25 


I'lie ineligibility arose in the last named case under a 
statute, which is not always held to be notice to the voter 
of what it enjoins. But in the cases cited from Indiana 
and Maryland, the ineligibility arose under the Constitu¬ 
tion of the fetate, which is always held to be notice of the 
law. So it must be observed that the ineligibility in this 
case arises under the Constitution of the United States, the 
paramount law, and is notice to the people of all the States 
of all its mandates and injunctions. 

Judge Coolej^ in his Constitutional Limitations, p. 620, 
states as a general rule that votes cast for an ineligible 
candidate, will be effectual to prevent an opposing candi¬ 
date being elected, and the election must be considered as 
having failed. But in a note to this text, he states that it 
has been held “that if the ineligibility is notorious, so that 
th^ electors must be deemed to have voted with a full 
knowledge of it, the votes for the ineligible candidate 
must be declared void, and the next highest candidate is. 
chosen.” The exception to the rule as strictly laid down 
by Cooley is consistent with the drift of all the decisions 
hereinbefore cited. 

Kyd on Corporations declares that, “ With respect to 
the capacity of the electors, their right is this: they can¬ 
not say there shall be no election, but they are to elect; 
therefore, though they may vote and prefer one to fill an 
office, they cannot say such a one shall not be preferred; 
or by merely saying, we dissent to every one proposed, 
prevent any election at all. Their right consists in an 
affirmative, not a negative declaration. Consequently, 
there is no effectual means of voting against one man but 
by voting for another; and even then, if such other person 
be unqualified, and the elector^ has notice of his incapacity, 
his vote will be thrown away.” 

4 








EXECUTIVE DECISION. 


L>6 


The following authorities are also cited as maintaining 
the same principle: 

liogers on Elections, ed. 1817, chap. 7; Hej^wood on County Elections, 
1)35; Roe on Elections, 256; Male on Elections, 336; Clerk on Elections, 156; 
Grant on Corporations, 100; Arnold on Corporations, 141; the case of Rex 
YS. Blissell, before Lord Mansfield; Oldknow vs. Wainwright, 2 Burr, 1017; 
King vs. Monday, 2 Cowp., 538, before Lord Mansfield; Regina vs. 
Hiomes, 7 Adolph & E., 960; Regina vs. Paneras, 7 Ellis & B., 954. 

In the decisions of the English courts, where the ele¬ 
ments of the cases are alike, there is a uniformit}’, and 
that imiformitv has been maintained for more than two hun¬ 
dred years. The kind of notice to the voters required in 
the different cases varies according to the publicity of the 
law constituting the ineligibility and according to the na¬ 
ture of the fact bringing a candidate under the disabling 
law; whether it was a latent fact, known only to the can¬ 
didate, or but to a few persons, or vhetherit was a patent 
fact and notorious to all. Local and special disabling stat- 
< utes and latent facts not generally known must be pub¬ 
lished to the voters. But disabilities generally well known 
and facts bringing candidates under those disabilities beino- 
notorious no special notice is required. 

Ill the King’s Bench, in 1847, Lord Denman, C. J., in 
delivering its judgment, stated with great clearness the 
rule established as to corjiorate elections. He Sfiid: 

“Where an elector before voting receives due notice 
that a particular candidate is disqualified, and yet will do 
nothing but tender his vote for him, he must be taken vol¬ 
untarily to abstain from exercising his franchise; and 
therefore, however strongly he may in fact dissent, and in 
however strong terms he may disclose his dissent, he must 
be taken in law to assent to the election of the opposing 
and qualified candidate; for he will not take the only 
course by which it can be resisted, that is tlie helping the 





EXECUTIVE DECISION. 


27 


election of some other person. He is present as an elect¬ 
or; his presence counts as such to make up the requisite 
number of electors, where a certain number is necessary; 
but he attends onl}’ as an elector to perform the duty 
which is cast on him by the franchise lie enjoys as an 
elector; he can speak only in a particular language; he can 
do only certain acts; any other language means nothing; any 
other act is merely null; his duty is to assist in making an 
election. If he dissents from the choice of A., who is 
qualified, he must say so by voting for some other 
also qualified; he has mo right to employ his franchise 
merely in preventing an election, and so defeating the ob¬ 
ject for which he is empowered and bound to attend. And 
this is a wise and just rule in the law. It is necessary 
that an election should be duly made, and at the lawful 
time; the electoral meeting is held for that purpose only; 
and but for this rule, the interest of the public and the 
purpose of the meeting might both be defeated by the 
perverseness or the corruption of electors who may seek 
some unfair advantage by postponement. If, then, the 
elector will not oppose the election of A. in the only legal 
way, he throws away his vote by directing it where it has 
no legal force; and in so doing he voluntarily leaves unop¬ 
posed, i. g., assents to, the voices of the other electors.” 

Gosling vs. Veley, 7 Adol & El. N. S., 438, 53 Eng. C. L. 

Lo;d Denman also said in the same case, “if the dis¬ 
qualification be of a sort whereof notice is to be presumed, 
none need expressly be given. Ho one can doubt that if 
an elector would nominate and vote only for a woman to 
fill the office of mayor, or burgess in Parliament, his vote 
would be thrown away ; then the fact would be notorious, 
and every man would be presumed to know the law upon 
that fact.” 








28 


EXECUTIVE DECISION. 


S. C., 438, 439. 

In King vs. Parry, (14 East, 559,) in 1811, it was cited 

“When a candidate is disqualified for sitting in Parlia¬ 
ment, and notice thereof is given to the electors, all votes 
given for such candidate will be considered thrown away, 
and the other candidate, with a minority of votes, will be 
in a position to claim the seat on proof of the existence of 
the disqualifications.” 

Again, in the Queen’s Bench in 1854, when upon C.’s 
right to act as councillor depended the defendant’s elec¬ 
tion as mayor. Lord Campbell, C. J., said : “C. clearly 

was elected councillor in November, 1851, just as much as 
if B. had not then stood at all. B. was in fact a candidate; 
but he was an alderman, and therefore ineligible, and that 
fact was known to the electors. Now, it is the law, both the 
common law and parliamentary law, and it seems also com¬ 
mon sense, that if an elector will vote for a man who he 
knows is ineligible, it is as if he did not vote at all, or 
voted for a non-existant person ; as it has been said, as if 
he gave his vote to the Man in the Moon. C. was duly 
elected.” 

Kegina vs. Coaks, 3 El & Bl. 77 Eng. C. L. 253, 

In King vs. Hawkins, 10 East, 211, (1808), Lord Ellen- 
borough, Chief Justice, contest concerning the election of 
Alderman in the borough of Saltash, said: 

“After two persons had voted for Hawkins’ and two for 
Spicer, notice is given of the fact creating Hawkins, ca¬ 
pacity, (which fact he at the time himself acknowledges), 
and that all votes given for him after that notice would be 
void and thrown away; and the incapacitating clause of 
the Statute of Car. 2 is publickly read; and all thisisfound 
to have been in the presence and hearing of all who after¬ 
wards voted for Hawkins, except two or three. After 



EXECUTIVE DECISION. 


29 


this notice, twenty persons voted for Hawkins, and sixteen 
for Spicer. election 

of corporate officers the votes given for an incapable can¬ 
didate, after notice of such incapacity, are to be considered 
as thrown away— i. e., as if the voters had not given any 
vote at all—then this will be a good election of Spicer, 
unless the time when notice of his incapacity was given, 
namely, after two persons had given their votes for each 
of the candidates, can b.e considered as making any differ¬ 
ence. The general proposition that votes given for a can¬ 
didate after notice of his being ineligible are to be con¬ 
sidered the same as if the persons had not voted at all, is 
supported by tfie cases of the Queen v. Boscawen, Easter 
XIII Anne; the King v. Withers, Eastern, VIII G., 2; 
Taylor v. Mayor of Bath, M. V. G., 2; all of which are 
cited in Cowper, 537, in the King v. Munday. In the first 
Boscawen and Roberts, the two candidates had an equal 
number of votes, but because Boscawen was incapable, 

I the votes given for him were considered thrown awa}^ and 
tiie other duly elected. In the second case. Withers had 
five votes out of eleven; and the other six refusing to vote 
at all, the Court held Withers duly elected; and that the 
six who refused to vote were virtually consenting to the 
election of Withers. In the third case, Taylor, Bigg and 
Kingston were candidates. Bigg was objected to as a dis¬ 
qualified person; notwithstanding which Bigg had four¬ 
teen votes, Taylor thirteen, and Kingston only one. There 
Lord Chief Jus- (218) tice Lee, at Nisi Prius, directed 
the jury that if they were satisfied that the electors had 
notice of Bigg’s want of qualification they should find for 
I the plaintiff* (that was Taylor who had only thirteen votes), 
because. Bigg not being qualified, was to be considered as 
a person not in esse, and the voting for him a mere nullity. 






30 


EXECUTIVE DECISION. 


The jury louiid for the plaintiff, and, the Court, on motion 
for a new trial, agreed with the law as laid down by Lord 
Chief Justice Lee, and refused a new trial. And in the 
King V. Munday, in Cowj^er, and the King v. Coe, in the 
27th of the present King [HU. Term), this doctrine was 
not denied, although, the cases then before the Court went 
off on other ],)oints. Is there, then, any solid distinction 
between the cases I have alluded to as establishing the 
general proposition and the present case, on account of the 
notice of disqualification of Hawkins having been given 
after two persons had voted? We think, there is not. There 
still remained thirty-six persons to vote, of whom sixteen 
only voted for Spicer, and.twenty for Hawkins, although, 
we are not prepared to say, tliat if the notice had been 
given in a more advanced stage of the poll, it would have 
made any difference, provided the number of votes given 
for Hawkins, without notice of his incapacity, had not 
been equal to those given for 8i)icer.” 

Ki!x vs. The Mayor, etc., of Cambridge IV Burrow, 2,008. January, 
1767. 

Under a rule to show cause why a mandamus should not 
issue, commanding tlie corporation of Cambridge to pro¬ 
ceed to the election of a mayor, it appeared that they had 
la fact chosen, on the charter day, one Gittbrd, “ an officer 
in the army, just gone to Korth America and that “the 
electors were sufficiently apprised of the fact at the time 
of the election, and soon after it, had express notice givmn 
them of it.” (p. 2,010.) The Court were very clear that a 
mandamus ought to go. 

Lord Mainlield said he h id no doubt on this question. 

* “ The corporation has a right to a new annual 

officer every year, and he ought to be dull/ chosen. The 
Court are to judge whether such an officer be dulcj chosen 



EXECUTIVE DECIfcrlOX 


31 


or not. ^ electors knew the circumstances of 

this person. They were ap[)r.sed of the whole before tlie 
election was concluded. The}' chose him because it was 
impossible for him to execute ([>. 2011) the office. This is 
no election at all; it is a mere color—a playing upon words. 
‘ An election ’ means a <lae election. They were morally 
certain that be could not execute the office to whicli tliey 
chose him * * * ^pj ,0 person now [)retended to be 

elected is incapable ; and chosen because he was so ; nor 
can he be obliged to accept the office and act. It is a void 
election. And as they knew of tlie incapacity, their votes 
were no votes ; they were tilrown away. * * * There¬ 

fore, Per Cur. unanimously, rule made absolute. 

In the King’s Bench in 1776 Lord Mansfield said : 
“Upon the election of a member of Parliament, where the 
electors must proceed to an election, because they cannot 
stop for that day, or defer to another time, there must be 
a candidate or candidates ; and in that case there is no 
way of defeating the election of one candidate proposed 
but by voting for another. 

‘'Kex vs. Monday, Coup. 

It is not necessary to multiply cases fiom the English 
courts to demonstrate the princijile that where voters are 
fairly chargeable with knowledge of tiie law and fact cre¬ 
ating the ineligibility of the candidate who may receive 
tlie highest number of votes, such votes are a nullity and 
the eligible iierson having the next highest number of 
votes is elected. In the words of Perkins, Justice, in 
Gulick vs. Kew, before cited, “there is a cloud of them.” 

'I he general ] arliamentary law of England is terse y 
stated in pamphlet written by Sir William Blackstone on 
the Walpole case, (Woodfall’s Junius, 123) as follows: 

“It is, in ail cases of election, the known and estab- 







32 


EXECUTIVE DECISION. 


lished law of the land, grounded upon the clearest princi¬ 
ples of reason and common sense, that if the votes given 
to one candidate are null and void they cannot be opposed 
to the votes given to another candidate; they cannot affect 
the votes of such candidate at all. As they have, on the 
one hand, no positive quality to add or establish, so they 
have, on the other hand, no negative one to subtract or 
destroy. They are, in a word, a mere non-entity. Such 
was the determination of the House of Commons in the 
Malden and Bedford elections.” 

It is suggested in the discussion of some of the cases ex¬ 
amined, that the English decisions ought not to have 
weight in this country, because the origin of suffrage there 
is in the crown, and here in the people. If there be force 
in this suggestion, which is doubtful in view of the his¬ 
tory of the British Constitution, it applies in favor of the 
principle recognized in this case. For the exercise of 
suffrage in electing President and Vice President of the 
United States, b}’ the plan of our Constitution, is not pri¬ 
mary, but secondary and derived. These officers are not 
elected by a direct vote of the people, in their original 
capacity as voters, but are chosen by the States, in their 
individual capacity as States, under the direction of the 
Federal Constitution, and there is no hardship when the 
appointment of electors is devolved by the legislature 
* upon the peo})le, that the conditions imposed upon the 
States by the Federal Constitution be strictly comjdied 
with. 

The case of Vance and Abbott, touching the Senator- 
ship of North Carolina in the 42d Congress, has been 
cited as settling the parliamentary doctrine in the United 
States that no candidate not having the highest number of 



EXECUTIVE DECISION. 


33 


votes can be held to bo elected. That case does liot ap¬ 
pear to j)resent any of the elements which are incident to 
the case of Watts. Vance had been elected Senator by 
the Legislature of North Carolina by a large majorit}' of 
all the votes of both Houses. He was ineligible under the 
fourteenth amendment to the Constitution of the United 
States to be admitted to his seat in the Senate, 
but he was not ineligible to be elected, as the pro¬ 
hibitory clause in the Constitution says “no per¬ 
son shall be a Senator,” &c. This has been con¬ 
strued by the practice of both Houses of Congress that a 
person ineligible to serve under this prohihition is not in¬ 
eligible to be elected. And if the disability be removed 
before the time when the member of Congress applied to 
be admitted to his seat, his election is valid. But if the 
disability be not removed the election becomes void. As 
we have seen, that elections not void at the time the votes 
are cast, the votes are legal living votes, and have vitality 
to defeat the minority candidate. The votes cast for 
Vance were legal, and the eleetion was not void, but void¬ 
able only. Therefore Abbott, the minority candidate, was 
defeated on the day of the election of Vance, and had no 
legal standing to apply fora seat in the Senate, as the eligi¬ 
ble candidate having the highest number of legal votes cast. 
There is another and conclusive reason why Abbott was 
properly rejected. The act of Congress under which the 
Senatorial election of North Carolina was held required 
that the joint assembly shall then proceed to choose by a 
viva voce vote of each member present a person for the 
purpose aforesaid, and a person having a majority of all 
the votes (jf said joint Assembly, a majority of all the 
members elected to both Houses being present and 
voting, shall be declared elected.” 







34 


EXECUTIVE DECISION 


^Ir. Abbott not liaviiin^ received a irnijority of the votes 
of “each member [)resent” could not be declared duly 
elected. If be was not defeated by the vitality of the 
votes cast foi'Vance be was defeated by tbe law under 
whicli be claimed bis right to a seat in the Senate, so that 
tbe ride in that (.'ase can in no jiossible manner be cited as 
an authority in the case of Watts claiming to be one of 
the electors from Oregon. 

The disabling clause of the Constitution standing against 
Vance declared in effect that he should not lw)ld a Sena- 
torship while under a disability named in the Constitu¬ 
tion. He could liave field had he been relieved from that 
disability in time. In the case of Watts the Constitution 
strikes at the election itself. It declares that ‘uio person 
liolding an office of trust or profit under the United States 
shall be appointed an elector.” Tliat is, no such person 
shall be chosen or elected. Tl.e Constitution directly an¬ 
nihilated every vote cast for Watts as it fell into the ballot 
box, and it had no vitality whatever to defeat the next 
highest candidate. The case is as if he had not been a 
candidate at all. 

In the earlier cases in the Senate, of Gallatin, of Pennsyl¬ 
vania, and Shields, of Illinois, as I understand them, the 
disabling fact under the Constitution of the United States, 
involving the question as to whether they had been citi¬ 
zens of the United States a sufficient period of time was 
laient. and knoAvn only to themselves. The members who 
Aa)ted for them believed that they were eligible or would 
become so before taking their seats in the Senate. The 
votes therefore for them had force to defeat a minor¬ 
ity candidate, but not force to make them eligible, for they 
could not comply with the Constitutional restriction. In 


EXECUTIVE UE^TSTOY. 


35 


the case of John Randolph, be was not twenty-five years of 
age when elected to the House of Representatives, but 
became of the Constitutional a^ie before he was admitted 
as a member. He was ineligible at tiie time of bis elec¬ 
tion to take bis seat in the House, but be was eli”:ible to 
receive votes. The votes were, therefore, legal, and de¬ 
feated the minority candidate. The case of Henry Clay 
on his first election to the Senate, I believe, wasof similar 
character. [ will not cite the several cases which occur¬ 
red in tbeU. S. House of Representatives in which minor¬ 
ity candidates have been seated in that body when the 
majority candidates were disqualified to be admitted on ac¬ 
count of not being able to take the prescribed oath. While 
those are cases which indicate that a minority candidate 
may be elected, they go much farther than the rule recog¬ 
nized in this case could be carried. It would appear by 
the cases cited that the votes cast for those under disabili¬ 
ties were not nullities, but were legal votes with vitality to 
elect and also vitidity to defeat the minority candidate, and 
had the disabilities of the majority candidates been re¬ 
moved in time, they might have been admitted members 
of Congress on the elections which occurred. Yet those 
cases show that the rule may, in some instances, be ex¬ 
tended much farther than the principle contended for here. 

The many instances of seating members of the House of 
Representatives whose disabilities had been removed sub¬ 
sequent to their election, only prove thUt the principle is 
well established in Congress that a person ineligible to 
bold, may be eligible to be elected, but no case has been 
cited yet of a decision either of the courts or of a parlia¬ 
mentary body wdiere a person absolutely ineligible to be 
appointed or elected could ever hold by virtue of the 
election. 







36 


EXECUTIVPJ DECISION. 


AS TO THE F.ICT. 


The [act that Watts was postmaster at Lafajette on the 
seventh day of November, wlien voted for as an elector, is 
asserted, proven, and not denied. He had been post¬ 
master for three years. Lafayette is the county seat of 
Yamhill comity, one of the oldest counties in the State, a 
place to which the people of the surrounding country re¬ 
sort at the time of holding courts and public meetings, and 
for the purposes of trade. The office of [lostmaster, at a 
county seat, is one of general notoriety to a greater or less 
extent throughout the State, and is a public office familiar 
to the people, and becomes known to them by actual 
personal transaction of official business witli the post¬ 
master. The fact that AVatts was [lostrnaster was men¬ 
tioned in the public press, and the political discussions 
pending the canvass before the day of the election. I 
think it, therefore, fair to conclude that many more voters 
than constituted the nominal majority of votes cast for him 
had actual personal knowledge that he was holding an 
office of trust and profit under the United States on the 
day of the election. This is a sufficient knowledge of the 
fact constituting the qualification to bring this case within 
the strict and limited rule laid down in Furman vs. Clute, 
50 Y. Y. IL, hereinbefore cited, as being necessary to 
throw away so many votes of tlie highest candidate, and 
to elect the next highest. 


CONCLUSION. 


Believing this to be the inevitable logic deducible from 
the law and the facts in the premises, I conclude that 




EXECUTIVE DECISION. 


37 


Watts is not entitled to have a certificate of election is¬ 
sued to him, because the Constitution of the United States 
declares that he shall not be appointed, and that E. A. 
Cronin is entitled to the certificate of election as one of 
the electors of this State, because he is the eligible candi¬ 
date having the highest number of legal votes cast for 
that office next after the election of Wm. II. Odell and 
John C. Cartwright, whose elections are not contested. 

Any other conclusion in this case would disfranchise the 
State of Oregon as to one-third of her representation 
in the College of Electors. The Constitution of 
the United States guarantees to this State “a num¬ 
ber of electors equal to the whole number of 
Senators and Representatives to which the State may 
be entitled in the Congress.” She has exeicised her 
franchise to appoint those electors. There were nine 
candidates placed in the field for three offices. The law 
knows no political parties, and if one party places in the 
field one candidate forbidden by the Constitution to be 
appointed, the result is the same as far as he is concerned, 
as though he had not been a candidate. The election 
proceeded, and the results must be ascertained and de¬ 
clared, If, through heedlessness or wilfulness, Mount 
Hood had been voted for, even unanimously, as one of the 
electors, that fact could have had no effect upon the result 
of the election, either to elect an impossible candidate or 
to defeat an eligible candidate. It is to my mind clear 
that the positive injunction of the Constitution of the 
United States upon the subject of electors, should be en¬ 
forced, and that in maintaining it in this particular the re¬ 
sult is as above declared. 

I have entertained and determined this matter as a con¬ 
stitutional question. 





38 


EXECUTIVE DECISION. 


The Constitution of the United States is the supreme 
law of the land. To it all acts of Congress are subordi¬ 
nate. In its presence the Constitutions and laws of the 
several States, if opposed to its mandates, crumble and 
fall. Every Executive of every State is its servant and 
supporter. To my duty to this Great ^gis of all our 
r gilts I have endeavored to devote myself in this decision. 

L. F. GROVEii. 

Executive Office, 1 
Salem, Ouegox, Dec. 6, 1876. j 



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